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FOIA Update: Landano Decision Requires Greater Disclosure

January 1, 1993
FOIA Update
Vol. XIV, No. 3

Landano Decision Requires Greater Disclosure

In a Freedom of Information Act ruling that should have wide-ranging impact on the use of the FOIA's confidential source exemption in litigation and at the administrative level, yielding greater information disclosure, the United States Supreme Court has established a higher evidentiary standard for Exemption 7(D)'s application to most law enforcement sources.

Addressing Exemption 7(D) for the first time, in United States Dep't of Justice v. Landano, 113 S. Ct. 2014 (1993), the Supreme Court considered the Exemption 7(D) status of sources who furnish information to federal law enforcement agencies with only "implied" assurances of confidentiality. Most of the law enforcement sources involved in the Landano case fell into this category and, based upon existing case law, were simply presumed by the defendant Federal Bureau of Investigation to be "confidential" sources entitled to Exemption 7(D) protection. See FOIA Update, Summer 1992, at 1.

In Landano, however, the Supreme Court flatly rejected the use of such a "presumption of confidentiality" under Exemption 7(D), even for a criminal law enforcement agency such as the FBI. It pointed to the fact that "the communications the FBI receives can range from the extremely sensitive to the routine." 113 S. Ct. at 2021. Effectively overruling several circuit court of appeals decisions on the point, the Court unanimously held that "the Government is not entitled to a presumption that a source is confidential within the meaning of Exemption 7(D) whenever the source provides information to the FBI in the course of a criminal investigation." Id. at 2024.

"More Particularized Approach"

Instead, the Supreme Court directed in Landano, an agency seeking to establish the applicability of Exemption 7(D) must take a "more particularized approach" in order to satisfy the exemption's confidentiality requirement. Id. at 2023. Where the source in question was not expressly assured of confidentiality by the agency, the agency must examine its records for any evidence that that particular source furnished information "with an implied assurance of confidentiality." Id.

This requires a close examination of all of the surrounding "circumstances" under which the information was furnished by the source, the Court explained, leading to a case-by-case judgment as to whether the necessary expectation of confidentiality by that source reasonably can be inferred. Id.

In its decision, the Supreme Court identified several such circumstances or "factors" to be examined in this process -- most prominently, the "nature of the crime that was investigated" and "the source's relation to the crime." Id. at 2023-24. It suggested that such circumstances can "characteristically support an inference of confidentiality" in many instances, but it emphasized that it is up to the agency to "establish" their existence in each individual case. Id. at 2022, 2024.

Use of Exemption 7(D) Under Landano

The Landano decision thus establishes a markedly different and more rigorous standard of proof for the many Exemption 7(D) cases in which a source's expectation of confidentiality previously would have been "presumed" by a federal law enforcement agency. Under it, agencies are required to review their use of Exemption 7(D) in pending FOIA litigation cases and to conform to its new evidentiary standard. In order to prove "implied confidentiality" under the circumstances of a particular case, an evidentiary submission in compliance with Landano is required.

In many cases, however, this standard cannot be met and in such cases Landano has compelled the disclosure of information previously withheld on that Exemption 7(D) basis. Primary examples are cases involving "institutional" sources, such as local law enforcement agencies and private commercial enterprises, which the Supreme Court suggested provide a "wide variety of information" under circumstances that do not necessarily warrant confidentiality. 113 S. Ct. at 2022. Agency use of Exemption 7(D) at the administrative level should follow the Landano litigation standard of proof as well.

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